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On August 22, 2017, EPA released its proposed area designations in the latest round of designations under the 2010 SO2 National Ambient Air Quality Standard (NAAQS).  The proposed designations largely track the states’ recommendations; however, EPA has identified a number of areas, recommended by states as “attainment,” that EPA believes “may be violating” the standard, including areas in Florida, Guam, Indiana, Louisiana, Minnesota, Ohio, Puerto Rico, and Wisconsin.  In addition, EPA has proposed to designate some areas as unclassifiable as opposed to unclassifiable/attainment.  EPA has published a table that compares its intended designations with the state recommended designations.  https://www.epa.gov/sulfur-dioxide-designations/intended-sulfur-dioxide-area-designations-august-2017

On July 25, California Governor Jerry Brown signed into law Assembly Bill 398, an extension of California’s greenhouse gas (GHG) cap-and-trade program through 2030.  Eight days after being introduced, AB 398 passed the California Legislature with a two-thirds majority vote of 55-22 in the Assembly and 28-12 in the Senate.  AB 398 implements California’s goal of reducing GHG emissions to 40 percent below 1990 levels by 2030, which was codified in SB 32, a bill signed by Governor Brown last year.

California’s Supreme Court recently upheld the State’s greenhouse gas (GHG) cap-and-trade auction program.  In a June 28, 2017 order, the Court denied petitions to review a lower court’s ruling that affirmed the program’s legality.  Filed by a coalition of industry groups, including the California Chamber, the petitions had alleged that the cap-and-trade program constitutes an illegal tax under Proposition 13 because the law authorizing it, AB 32, was not passed by a two-thirds vote.

The DC Circuit issued a decision on July 3, 2017, vacating the 90-day stay of the Oil & Gas Industry NSPS rules – the first rules to regulate methane from that sector.  In a June 5 Federal Register notice, the new Trump EPA stayed the rules pending reconsideration under Section 307(d) of the Clean Air Act.  Environmental Groups filed an emergency challenge to the stay, asking for either a stay of that decision or summary vacatur of it.  Issuing its decision less than a month later, the court vacated EPA’s stay of the rules.

Yesterday, the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit” or “the court”) vacated a federal district court’s order requiring EPA to account for the economic impacts of Clean Air Act (“CAA”) regulations.  This decision stems from a suit filed by coal companies claiming that EPA had failed to perform a non-discretionary duty by completing continuous evaluations of job losses and plant closures resulting from CAA implementation or enforcement as required under Section 321 of the CAA.  In a strongly worded opinion, the district court ordered EPA to come into compliance with the requirements of Section 321 by July 2017, an order that EPA subsequently appealed to the Fourth Circuit.

Yesterday, June 6, 2017, EPA Administrator Scott Pruitt announced a one-year delay of EPA’s final designation of areas under the 2015 ozone standard.  The 2015 standard was issued on October 26, 2015 and tightened the existing 2008 standard from 75 ppb to 70 ppb.  In general, EPA is required to issue designations within two years of publication of a new standard. Designations for the 2015 standard were originally due by this October, and EPA would have been required to preview for the states its intended designations at least 120 days in advance of the October deadline – by this August.   

Today, the U.S. Court of Appeals for the District of Columbia Circuit issued orders holding litigation challenging two major climate regulations in abeyance—the “Clean Power Plan” and the “Carbon Pollution Standards” for new and modified electric generating units.  Both rules were critical components of the Obama Administration’s climate change agenda…

In a split decision, a California appellate panel recently affirmed a lower court’s decision upholding the state’s greenhouse gas cap-and-trade program.  Challengers, including the California Chamber of Commerce, the National Association of Manufacturers, and the Pacific Legal Foundation, argued that: (1) the California Air Resources Board (CARB) acted outside of its authority when it created a cap-and-trade program that included an auction of emission allowances, and (2) the revenue generated from the auction sales constitutes an impermissible tax.  California’s Proposition 13 requires taxes to be approved by a two-thirds vote of each house of the legislature.